Today’s NYT reports that the pork industry is incensed at the public relations drubbing their industry has taken as a result of the swine flu outbreak. The pork industry insists that it should be called something else. Tom Harkin has decided to call the virus the “so called” swine flu. Meanwhile, a number of countries, including the Philippines, Kazakhstan, Ukraine and Ecuador have banned the importation of U.S. pig products.

Now, there is no reported case of anyone contracting the disease through consuming pig products and it is highly unlikely that any such transmission would occur. It would seem that the millions of people who are refusing to buy pork because they’re scared of contracting the flu are misguided and acting out of a type of reactionary ignorance that I usually abhor and which has led to some horrendously pernicious lawmaking. So, I confess that the downturn in pork consumption connected with this outbreak does give me a moment of pause.

There; I’m over it now. When it comes to factory farming, I’m a brutal instrumentalist. Any reason that people want to use to help them stop eating factory farmed pig meat works just fine by me.

Flying below the media radar (at least in the United States) is an apparent link between a Smithfield Farms hog confinement facility in Veracruz, Mexico and the swine flu outbreak. Although it has received little attention here, the issue has gotten significant coverage in Mexico.

Initial reports linked the disease’s vector to flies that reproduce in contaminated pig waste although that theory apparently does not withstand close scrutiny. Others link it to a vicious cycle of wild ducks drinking contaminated water from sewage lagoons, landing and excreting in “farmed” fish ponds, whose water then gets drunk by confined chickens,whose feces gets mixed into the feed to confined pigs, who then excrete the contaminants back into the sewage lagoons,which then gets drunk by the ducks, ad infinitum.

Even if it turns out that Smithfield’s facility did not spawn the virus, however, that conclusion would change little. Adding massive confinement facilities with poor sanitation to an impoverished rural community with poor infrastructure is a recipe for disaster. If not now then soon.

The U.S. Supreme Court has agreed to finally determine whether selling videos depicting animal cruelty should be constitutionally-protected speech.

This year, it will hear the case of United States of America v. Robert J. Stevens. The defendant, who sold dogfighting and hog-dog fighting videos, was the first person to be convicted under a 1999 federal law prohibiting the creation, possession and/or sale of videos depicting animal cruelty with the intention of profiting financially therefrom. He was convicted by a U.S. district court in 2005, but a U.S. appeals court vacated the holding as an unconstitutional restriction on free speech.

According to one article, “Stevens argued in his appeal that the federal law was unconstitutionally vague and overbroad because it criminalized depictions of conduct that was either legal or happened before dogfighting was outlawed, prosecuted people who did not take part in the underlying conduct or could be extended to hunting and fishing violations.”

According to the Washington Times, “the U.S. government seeks to carve out an exception to free speech in the case of those selling videotapes of pitbull fighting and the fetished crushing of small animals by high-heeled shoes.”

There has been a question for some years now regarding of legality of sales of videos depicting dog fighting, as well as fetish “crush” videos, in which small animals are crushed by high-heeled shoes. The Humane Society of the United States is currently suing online merchant Amazon.com and four other companies because of their sales of dogfighting and cockfighting videos and magazines. Dogfighting is illegal in all U.S. states, and cockfighting is illegal in 48 states.

In addition to ultimately being killed, and to (for most), being severely confined indoors, without fresh air, soil or trees, American factory-farmed animals are subjected to a horrifying line-up of painful physical mutilations. These are all a result of farmers’ desires to keep their work easy and predictable, and reflect the shift to factory-farming that has occurred in the U.S. since the 1940s.

While the last few decades have seen more or less blind acceptance of tail-docking, debeaking, tooth extraction, dehorning, branding, detoeing, ear notching, castration, and other generally excruciating procedures conducted without anesthesia, things are beginning to change.

As the public has become increasingly sensitized to the plight of animals packed for months and sometimes years in windowless warehouses know as “factory farms”, and as they begin to support offering these animals more space, and perhaps fresh air and a natural social network, they also begin to question the mutilations inflicted on the animals.

Nowhere does the American public seem more interested and proactive in such issues than in California. Last year saw the passage of the Prevention of Farm Animal Cruelty Act, banning the extreme factory-setting confinement of egg-laying hens, calves intended for veal, and pregnant pigs. The state is once again leading the way with the help of its newly created Senate Committee on Food and Agriculture (see January 17, 2009 post). It has approved Senate Bill 135 to ban the routine tail-docking of dairy cows for management purposes, due to it being a form of “needless animal cruelty inflicted on animals raised for food.”

According to the Animal Legal Defense Fund, tail docking was introduced in an effort to curb disease and infection in dairy cows and those milking them. However, the American Veterinary Medical Association claims there exists insufficient scientific evidence to support this practice for the sake of routine herd management. The American Association of Bovine Practitioners agrees, stating it “is not aware of sufficient scientific evidence in the literature to support tail docking in cattle.” To the contrary, there exists clear scientific evidence of animal welfare problems associated with tail docking, as enumerated by the American Veterinary Medical Association: acute temporary pain; long-term, chronic pain; potential infection; psychological stress; increased vulnerability to flies; increased sensitivity to hot and cold temperatures; potentialyl compromised ability to communicate with other cows.

The practice is banned in many European countries and some Australian states, and is disapproved of by the American Veterinary Medical Association, the California Veterinary Medical Association, and various animal welfare experts, public health experts and agricultural scientists

To become law, the bill must next be approved by the Senate Public Safety Committee. The Illinois senate has also introduced a bill to ban tail-docking of dairy cows by amending the Illinois Humane Care for Animals Act. This is a great first step. Next, we need all states to adopt this legislation and expand it not only to other species who are forced to suffer unnecessary and deleterious tail cutting, but to other ridiculous and painful practices inflicted on various species, including tooth clipping, disbudding and dehorning, castration, detoeing, mulesing and debeaking.

The Washington Times reports today that Leona Helmsley’s estate trustees have allocated $136 million of the trust’s first dole-out of $137 million (out of an estimated total of $5 billion) to medical charities rather than dog charities — the latter being what some animal advocates feel her will indicated she wished.

The content of her will makes it difficult to discern her ultimate wish. The will created a trust fund (in addition to the notorious pet trust created for her dog, Trouble, the amount of which was drastically reduced by a judge in a separate and equally controversial situation invoking issues of animal rights and animal law).

The will’s mission statement, drafted 4 years prior to her death, stated that her two priorities for estate distribution were helping the poor and caring for dogs. However, she later struck the first priority and added to the second the phrase “and other such charitable activities as the trustees shall determine.”

This past February, a surrogate court judge ruled that the trust’s trustees have sole authority to determine where the funds are allocated… yes, that sounds about right. Yesterday, the trustees chose to distribute the funds such that only a fraction ($1 million of the first $137 million bundle) went to animal advocacy organizations, while most went to medical research programs benefiting humans.

The response from the Humane Society of the United States — one of the animal advocacy organizations selected to receive a tiny portion of the funds — is that it is “a trifling and embarrassingly small amount” and that “Mrs. Helmsley’s wishes are clearly being subverted.”

And so we find ourselves again embroiled in a national debate over the priority that ought to be given to man’s best friend. Whereas the scandal revolving around Helmsley’s dog Trouble invoked people’s feelings about the role of companion animals in one’s family, this debate pushes people one step further: to consider the value we ought to assign dogs who are not part of our families; not our best friends. This raises the questions of how much priority we should assign, as a society, to canine protection and advocacy, and how we feel about those who think these are, or ought to be, a high priority.

Although in this case, canine interests are clearly trumped by human interests, dogs and all animals gained a little ground today simply by being thought of in a serious and legally discerning manner. That attitude, on the part of executors, trustees, judges, attorneys, and society at large, is what is required for all animals’ interests to advance within the legal world.

Without excusing or condoning the bombings (indeed, even as I condemn them), I have to wonder whether this individual (who the Bureau and CNN describe as a “strict vegan”) would top the terrorism list if he had right wing politics. Sarah Palin, for example, isn’t sure abortion clinic bombers are terrorists even though such actions kill people. I wonder if the FBI also senses a discontinuity here.

Whenever I talk to someone about becoming a vegetarian, I have to be very conscious of the argument I present. I usually start by letting people ask me questions about my own lifestyle, rather than come off as an agenda pusher. But where we go from there is another matter. We can talk about environmental impact, moral rights, human health problems, or even if said person approves of the food system we have. I do not think, however, that I have ever had a productive conversation with someone unacquainted with animal rights about the emotional injustice of factory farms, and that is unfortunate.

Emotions are tricky, even restricted to humans. We find it difficult at times to emphasize with our friends during trying periods, let alone with millions of other humans continents away, whose plights make most of our troubles trivial. Perhaps it is no wonder that many people cannot understand the emotions of farmed animals. An inability to understand these emotions, however, is no excuse not to try, or more egregiously, to dismiss them as nonexistent.

Earlier this month, I was able to travel to Brazil as part of the Comparative Environmental Law class here at Pace Law School. The class is team-taught taught by Professor Cassuto at Pace and via teleconference with Professor Romulo Sampaio (Pace LLM ’06, SJD expected ’09) of the Getulio Vargas Foundation School of Law in Rio de Janeiro. We spent the first three months of the semester learning about water law and other environmental concerns shared by, and unique to both countries.

During the trip, we spent time in the Pantanal, the world’s largest wetland. While I was there, I had the opportunity to see Brazilian cattle in several settings. Brazilian cows, with their marked humps, looked a bit alien to me on first impression. I met a few while in Campo Grande, at a rodeo. Walking around the fair grounds, I came across a pavilion where about a dozen cows were standing, some sitting, and some lying down. Some mothers even had their calves with them. I come from a rural New Jersey county, so seeing cows up close is nothing new. Still, it was refreshing to see an animal that many Americans never meet, save for meat. True, these cows were to be sold, and most of them would face a similar fate as their American cousins, but at least these cows had breathed in air that was not contaminated with their own waste and the smell of disease. They were standing in hay, some with their children, and though some backed away from me when I approached, others were inclined to give my hair an authentic “cow-lick”.

I hesitate to say these cows were happy. They certainly looked more content than the tragic faces I have seen in factory farm documentaries. Still, I am not an animal behaviorist, and I do not know if what I observe is true. I recently finished Jeffrey Moussaieff Masson’s The Pig Who Sang to the Moon: The Emotional World of Farm Animals. While I enjoyed the various stories about animal behavior, Masson reaches too many conclusions about animal personalities that are over-romanticized and unsupported, and I do not want to come across in the same manner. That is the danger of the emotional argument. Many of us who empathize with animals and experience spontaneous discomfort with, and moral outrage towards factory farms have difficultly marshalling those impressions into an effective argument for someone who does not. Moral rights and atrocious conditions arguments can be explained, but saying that a cow should be let outside because she will be happier will not convince doubters, either to the veracity or the relevance of the position.

While we were out in the heart of the Pantanal, I took a morning to explore several of the fields surrounding our lodgings. I say “fields,” but this being the Pantanal, there were not just wide grasslands, but also thick groves of trees, marshes, and terrain of unparalleled beauty. In one field, I came upon a herd of cows grazing along the road. They also saw me, and immediately, without a sound save for their hooves, the formed a line across my path several meters ahead of me. The calves peaked out between the adults’ legs, while they all stared at me. I took a circuitous path around them; cows in numbers, no matter how benign, are intimidating. As I rounded them, they shifted almost imperceptivity so the herd remained facing me. On my way back through the field, the same proceeding unfolded. Feeling bolder, this time I took a step towards the herd. Several dozen eyes watched me. I took another step, and then as one, they all bolted in a hasty retreat until they were a hundred yards away. I’m not sure what I expected them to do, but I didn’t want to give chase, and I walked on. Looking back, I saw a bull I had not noticed before come out of the trees. He watched me walk, and when I had gone down the path, he bellowed towards the herd, which then casually made its way back to where I had been, and resumed grazing. Relating this experience back to Prof. Sampaio, he stated simply, “Oh yes. The cows here are very curious.”

I do believe that animals have emotions, and I think they are more similar to humans’ than they are foreign. Curiosity, enjoyment of what one is doing, and fear are all emotions we understand, and all of these were expressed in those animal’s faces. I believe that the cows I saw in the Pantanal and in Campo Grande were happier and lived a fuller life than the cows in American CAFOs, enough so that when I saw the meat served to my classmates at lunch in Rio, it seemed a little less like a badge of societal excess. This is not to say that Brazil isn’t in danger of going the way of the United States; I am writing a paper on that very issue. Yet no matter how I address animal protection laws and meat export rates, there is very little room in a sustainability argument for an appreciation of happy cows. Thus I leave my musings here, in a less structured format, where I am free to believe that the Pantanal’s roaming cattle are content; if nothing else, they made me smile.